State v. Williams , 34 Wash. 2d 367 ( 1949 )

The majority opinion admits that the trial court was in error in refusing to allow witnesses to testify concerning statements made to them by appellant, but holds that appellant cannot complain because of the fact that his attorney did not make an offer of proof. I maintain that the rule relative to the necessity of making an offer of proof does not apply in this case, because of the recognized exception to the rule. That exception obtains when the proof sought to be elicited is implicit in the question itself, or when the court definitely rules, as it did on several occasions in the case at bar, that the evidence sought to be elicited would not be admitted.

Appellant's counsel attempted to show that his client had made certain statements which would indicate insanity. Examples of the evidence sought to be introduced and the rulings of the court are as follows:

Of the witness, Nora Williams:

"Q. What did you observe when you saw Wayne then? A. Well, I noticed that Wayne was apparently a lot worse, and he told me the way he felt, and all, and he had been going to several doctors.

"MR. SHERIDAN: I object to what he told her. THE COURT: Well,that he made complaints to her is admissible; but theconversation is not.

"Q. Did he make any complaints to you at that time? A. Yes, sir, he told me that he felt bad.

"MR. SHERIDAN: Same objection, Your Honor.

"Q. You can't tell what he told you, Mrs. Williams. Did he make any complaints to you? A. Yes. He was working at Spartan then, and had to quit Chandler Materials and go to work at Spartan. . ..

"Q. Did he ever talk to you, or did he ever mention his physical condition to you? A. Yes, sir. Q. And in what regard? A. Well, he told me that his torso, —

"MR. SHERIDAN: (Interposing) I object, again, Your Honor, as to what he told her. MR. ZEMPEL: If the Court please, this is going to his mental condition, and necessarily it has to be founded somewhat on hearsay, and is not going towards the guilt or innocence of the crime. THE COURT: Conversations will not beadmitted. MR. ZEMPEL: Exception. THE COURT: The fact of complaints made may be shown.

"Q. What kind of complaints did he make, Mrs. Williams? What did he complain about? A. Well, he complained of this heavy feeling in his stomach. He thought that his limbs were separated from his body.

"MR. SHERIDAN: Object to that, again, Your Honor, for the same reason. THE COURT: It will be overruled. . . .

"Q. Were you there when he was working at Spartan Aircraft? A. This last time? Q. Yes. A. Yes, that was when he had gone back to Spartan to go to work. He told me that he thought the Spartan people were in with the Chandler Materials people, working against him.

"MR. SHERIDAN: I object to that, Your Honor, any conversation they had. THE COURT: Conversations are not to be admitted."

Of the witness, Kathleen Rehbein:

"Q. What symptoms did you observe? A. The heavy feeling in his chest, he told about, and he was always tired.

"MR. SHERIDAN: I object to that, Your Honor, as hearsay. MR. ZEMPEL: If the Court please, this all goes to the mental condition and naturally it has to come some way. It is very difficult to get this type of testimony. THE COURT: I willinform counsel that testimony will be received, if properly proferred,of complaints."

Of the witness, Francis Williams:

"A. He was over there approximately two or three months. I saw him quite often there, once or twice a week, and he kept telling me those stories of people poisoning him around there. He thought that people were poisoning him, or trying to, the bosses there. He thought one of the bosses was the leader of them, and that they were trying to poison him; and also that there was some other fellow there that they were going to poison. He told me once that a fellow employee there had told him, —

"MR. SHERIDAN: (Interposing) I object to what he told him, Your Honor. THE COURT: Again, I say, the witness may testify tocomplaints of grievance, but not relate conversations." (Italics in all the foregoing quotes mine.)

This record proves conclusively that the court and the prosecuting attorney knew exactly the things appellant's counsel sought to prove. Why the necessity of offering to prove conversations concerning statements made when the court definitely, and on many occasions said that conversations orstatements of appellant could not be allowed?

The rule governing this situation is laid down as follows in 64 C.J. 124, Trial, § 143:

"Statement or Disclosure of Evidence Expected. Where the question does not so indicate, a party must inform the court as to what he expects to prove by the witness. If a question is in proper form, however, and clearly admits of an answer relative to the issue and favorable to the party on whose side the witness is called, the party is not bound to state the facts proposed to be proved unless the court requires him to do so. Where a witness has a limited capacity to testify, the party should show either by the form of his question or offer that the testimony sought comes within the limitation, but such rule does not generally apply where there is no such limitation."

This same rule is expressed in 4 Nichols, Applied Evidence, 3354, Offer of Proof, § 8:

"Where purpose of question and answer apparent. Where the question propounded made apparent the answer that would have been given, upon sustaining an objection to the question it is not necessary to make a tender of what is intended to be established by the answer, since, when the question shows its purpose, the court is thereby enabled to rule on its admissibility."

The law is laid down in the oft-cited case of Buckstaff v.Russell Co., 151 U.S. 626, 38 L. Ed. 292, 14 S. Ct. 448. This was an action on a contract with a counterclaim interposed. The court said:

"Our rule, thus construed, is one to which parties can easily conform. Having access to the deposition containing the answer of the witness to the interrogatory, parties, as well as the trial court, are informed of the precise nature of the evidence offered. The requirement that an assignment of error, based upon the admission or rejection of evidence, must, in the case of a deposition, excluded in whole or in part, state the full substance of the evidence so admitted or rejected, means that the record must show, in appropriate form, the nature of such evidence, in order that this court may determine whether or not error has been committed to the prejudice of the party bringing the case here for review.

"But this rule does not apply where the witness testifies inperson, and where the question propounded to him is not onlyproper in form, but is so framed as to clearly admit of an answerfavorable to the claim or defence of the party producing him. It might be very inconvenient in practice if a party, in order to take advantage of the rulings of the trial court in not allowing questions, proper in form and manifestly relevant to the issues, were required to accompany each question with a statement of the facts expected to be established by the answer to the particular question propounded. Besides, and this is a consideration of some weight, such a statement, in open court, and in the presence of the witness, would often be the means of leading or instructing him as to the answer desired by the party calling him. If the question is in proper form and clearly admits of an answer relevant to the issues and favorable to the party on whose side the witness is called, it will be error to exclude it. Of course, the court, in its discretion, or on motion, may require the party, in whose behalf the question is put, to state the facts proposed to be proved by the answer. But if that be not done,the rejection of the answer will be deemed error or not,according as the question, upon its face, if proper in form, mayor may not clearly admit of an answer favorable to the party in whose behalf it ispropounded."

(Italics in above and following cases supplied by me.)

In Hartnett v. Boston Store of Chicago, 265 Ill. 331,106 N.E. 837, L.R.A. 1915C, 460 2d case), I find the following:

"On the trial Soderquist was a witness for plaintiff and was asked a number of questions evidently designed to show that he had never owned a gun and was not accustomed to the use of fire-arms or experienced in that respect, and objections to the questions were sustained. Error is assigned on the ruling, and one reply is that the plaintiff made no offer of proof as to what the witness would answer. That does not justify the ruling,because where a question shows the purpose and materiality ofevidence it is not necessary to state what the answer would be.If a question is in proper form and clearly admits of an answerrelative to the issue and favorable to the party on whose sidethe witness is called, the party is not bound to state the factsproposed to be proved by the answer unless the court requires himto do so."

The court in Mitchell v. Harcourt, 62 Iowa 349, 17 N.W. 581, said:

"The plaintiff asked one of the defendants, when on the stand as a witness, a question in the following words: `How much did you owe?' and also other questions, so framed as to elicit the amount the defendants were indebted at the time the attachment was sued out. This evidence was objected to as immaterial and not proper cross-examination, and the objections sustained. The latter objection is not now insisted on, but it is said that the evidence sought to be introduced would not tend to establish that the grounds stated in the petition asking the attachment were true. It may be that this is so; but we think the evidence was admissible as bearing on the question of malice. If the defendants were largely in debt, taking into consideration the amount of property owned by them, and the plaintiff had information of such fact, which as a reasonably prudent person he was warranted in believing when he procured the attachment, such evidence would, we think, have a tendency to show that he was not actuated maliciously in suing out the attachment. But counsel for the defendants insists that the error cannot be corrected, because it does not appear what the plaintiff expected to prove by the witness, . . . But we think it sufficiently appears from the question asked what wasexpected to be proved. The true rule, we think, is that, when itis apparent on the face of the question asked the witness whatthe evidence sought to be introduced is, and that it is material,this is sufficient. But when this is not apparent, then the party seeking to introduce the evidence is required to state what he expects to prove, and thus make its mater[i]ality appear."

Hauff Stormo v. South Dakota Central R. Co., 34 S.D. 183,147 N.W. 986, concerned an automobile-train collision. Hauff, one of the plaintiffs, was asked,

"Whether, shortly after the accident, he did not have a conversation with his partner, Stormo in which Mr. Stormo, in substance stated to him, `that this thing would not have happened, if he had held the wheel, but that Burns was holding the wheel while he was putting on his automobile gloves.'"

This question was objected to, and the objection sustained. The court in that case in the portion of its opinion relevant to the problem in the case at bar, said:

"The precise issue decisive of the case, as submitted to the jury, was whether Stormo was guilty of contributory negligence which would bar plaintiff's right of recovery. Plainly the purpose of this question was to elicit evidence of statements or admissions by the plaintiff Stormo, from which an inference of negligence on his part, might be drawn by the jury, namely: that while approaching the crossing, he (Stormo) had surrendered control of the machine to his passenger, Burns, and was himself engaged in putting on his automobile gloves, at the time, when, if he himself had retained control of the automobile, the accident would not have occurred. It is true, no offer of proofwas made, but the question itself, disclosed the materiality ofthe evidence sought to be elicited, and no offer of proof wasnecessary. It is impossible for this court to determine what effect such evidence, if received, may have had in determining the verdict of the jury. We are clearly of opinion the exclusion of this evidence was reversible error, for which a new trial must be granted."

In re Johnson's Estate, 100 Neb. 791, 161 N.W. 429, involved a will contest. On cross-examination, a witness' testimony as to certain matters was ruled out. In passing, the court decided:

"It is contended that the contestants cannot now object to this ruling because no offer of proof was made . . . Many of the rules of evidence are necessarily precise and technical. The purpose of these rules is to elicit the truth, and not to set traps for the unwary. When a question is asked that does not `indicate to the trial court the relevancy of the testimony,' it is not error to exclude the testimony, unless the party propounding the question informs the trial court as to the relevancy of the testimony, and an offer of proof, that is, a statement of the nature of the evidence sought by the question, will enable the trial court to determine whether the evidence is competent. This rule is sometimes, though rarely, enforced in cross-examination. Whenthe condition of the record and the form of the question itselfshows that it is relevant and competent, no offer of proof isnecessary. The many decisions of this court in regard to requiring an offer of proof should be so understood."

Birmingham R., Light Power Co. v. Barrett, 179 Ala. 274,60 So. 262, was a personal injury case. The rule with which we are here concerned is so well considered in that case that I quote it extensively:

"A definite restatement of the rule was made in Phoenix Ins.Co. v. Moog, 78 Ala. 284, 308 (56 Am. Rep. 31), in the following language . . .: `The exclusion of the several questions propounded by the defendant to the witness Cook was clearly erroneous. The true rule on this subject is as follows: If aquestion is propounded to a witness on the stand, the answer towhich is prima facie relevant and legal testimony, and the courtrefuses to allow the witness to answer, this is error, for whicha reva[e]rsal will lie; for the reason that "the injury to theparty consists in the refusal of the court to permit the answerto be given, and he can do nothing more to prove the wrong donehim than to show that he has asked a legal question, the answerto which, by the action of the court, was denied him." — Nailorv. Williams, 8 Wall. 107 [19 L. Ed. 348]. Where no answer is given by the witness, as in this case, this does not repel the presumption of injury, provided the question itself is sufficiently definite to indicate the nature of the answer sought to be elicited, and such answer is prima facie relevant, material, and otherwise legal. — Roberts v. State, 68 Ala. 515. In such a case, it would add little or nothing to the enlightenment of the court for the counsel to state what is proposed to be proved by the question, because this is shown by the question itself, so far as to justify the admissibility of the answer. It is only when the question is so general in its nature that the answer sought to be elicited may as well be prima facie irrelevant and illegal testimony, as relevant and legal, that the exclusion of the question, and the refusal of the court to allow the witness to answer it, will be regarded as free from error. It is reasonable in this class of cases to require the counsel to inform the court what is proposed to be proved, so that the court may see that he seeks to elicit testimony which is proper to be admitted, and not that which is improper. — Allenv. State, 73 Ala. 23. If this is not done, it may be inferred by the court that, in view of the broad and comprehensive nature of the interrogatory, the answer of the witness might have been illegal, irrelevant, or even [non-] beneficial to the party. There should be no such presumption, however, in the first case, because the question is sufficiently narrow to preclude it, and the party has the legal right to examine the witness as to all relevant and legal matters within his knowledge. When the courtdenies this right, and refuses to permit its exercise, there ismanifest error; and error imports the presumption of injury,unless it is clearly repelled. The adjudged cases in this state can all be harmonized in our opinion with this principle, although some expressions may be found which seem susceptible of a contrary construction. — Burns v. State, 49 Ala. 370. However this may be, the rule above announced is, in our opinion, the correct one.' The rule as stated in the Moog Case was reaffirmed in Parrish v. State, 139 Ala. 16, 46, 36 So. 1012,1021, where it was said . . . `It is true the question was not answered, and it is not made to appear what the answer would have been, except from the question itself. But this is not necessary to constitute reversible error, if the question is sufficiently definite to show that the answer would be prima facie relevant, and it indicates the nature of the answer. It is only when the question is so general that an answer cannot be said to be prima facie admissible that a party is required to inform the court what is proposed to be proven, so that the court may see that the evidence he seeks to elicit is proper. The question in this case clearly showed that it was intended to elicit an answer admissible and relevant, as tending to impeach the evidence of the witness to whom it was propounded. This is as clearly shown by the question as if the answer had been stated to the court. — [Citing cases.]'"

Again, in Eaton v. Blackburn, 49 Ore. 22, 88 P. 303, I find the following:

"It is argued by defendants' counsel, however, that the question asked does not indicate who, if any person, `considered' the hay marketable; that an answer to the question would have permitted a comparison of the hay shipped with other hay claimed to have been sold in various places without attempting to show that such other hay was marketable, thereby permitting the witness to speculate as to what he believed other persons thought of the hay and excluding his own knowledge in relation thereto; and that no statement was made by plaintiff's counsel of what he expected to prove by the witness; and hence no error was committed as alleged. The object of stating what fact is expected to be proved by a witness who is not permitted to answer a question is to advise the court thereof, so as to enable it to determine whether or not the testimony offered is relevant and material: Stanley v. Smith, 15 Or. 505 (16 P. 174); State v.Savage, 36 Or. 191 (60 P. 610, 61 P. 1128). When the answersought, however, is reasonably inferable from the question asked,it is not necessary to state what testimony is thus expected:Beers v. Aylsworth, 41 Or. 251 (69 P. 1025). The court was sufficiently advised, from the question asked, to determine whether or not the answer sought was material and relevant, and, this being so, plaintiff's counsel was not required to state what the witness would say in response to the inquiry."

In Cripe v. Cripe, 170 Cal. 91, 148 P. 520, the court said:

"The additional point is made that the sustaining of an objection to questions like those under discussion will not furnish ground for reversal, in the absence of a statement indicating to the court the nature of the testimony sought to be elicited. But the rule thus invoked can have no applicationhere, since the questions themselves were so framed as to showclearly the nature and purport of the declarations sought to beproved. Nor was the defendant called upon to explain the purpose for which the testimony was offered. Such explanation may be necessary where testimony is admissible for a limited purpose only. But here the declarations were admissible generally, and had a directbearing on one of the main issues in the case. We think the appellant was entitled to have this evidence heard and considered by the court."

Rules of law in criminal cases, especially as here where the death penalty has been imposed, should be strictly enforced. There is, to my mind, no good reason for denying to appellant the right to have his witnesses explain fully to the jury their recollection of the things he said, in order that the jury might better consider his mental condition. As stated by counsel for appellant, the purpose of the questions was not to prove a fact connected with the murder, but was to show appellant's mental condition. A person's mental condition must necessarily be founded to a large extent, and properly so, upon hearsay evidence.

The judgment of conviction should be reversed and a new trial granted.

September 22, 1949. Petition for rehearing denied.